Reporter Sources and Confidentiality

“Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.” -Thomas Jefferson to John Jay, 1786

A press that is free to publish what it wants without fear of government censorship or intervention is “one of the great bulwarks of liberty.” The authors of the U.S. Constitution intended the free American press to function as a necessary check on government power. Reporters play a vital and necessary role in this, but how much power should they have to maintain the anonymity of their sources?

Uncensored information is necessary for democracy because citizens can only meaningfully exercise their right to vote when they have all of the relevant information.

“Once one accepts the premise of the Declaration of Independence — that governments derive “their just powers from the consent of the governed” — it follows that the governed must… have full freedom of expression both in forming individual judgments and in forming the common judgment.” – Thomas I. Emerson, “Toward a Theory of the First Amendment.”

While there is near-universal agreement that the public must be informed for democracy to function properly, courts frequently debate various mechanisms for delivering information. These debates beg a number of important questions, including: should a reporter’s promise of confidentiality trump a grand jury subpoena? What if the act of giving the reporter information was illegal? What if the reporter’s source lied? This article will provide a brief discussion of the merits of a reporter shield law, taking into account the protections the First Amendment already provides.

Is There a First Amendment Reporter’s Privilege?

The U.S. Supreme Court first considered whether a reporter can be forced to name a source to a grand jury in 1972, in Branzburg v. Hayes. Justice White’s opinion for the majority held that reporters had no more right than any other citizen to refuse to testify before a grand jury, and that society’s interest in upholding the rule of law outweighed any theoretical concern about the ability of the press to gather news from confidential sources. However, lower courts have had difficulty interpreting Justice Powell’s concurrence, which emphasized the “limited” nature of the decision. Powell indicated that a First Amendment “reportorial privilege” does indeed exist, but that it did not extend far enough to protect the reporters in Branzburg. The landmark opinion left a number of questions unanswered, namely: what should this privilege be, when does it apply, and who should receive it?

Judith Miller of the New York Times tried unsuccessfully to assert a First Amendment privilege when she faced a federal subpoena in the so-called Plame Affair. After one of Miller’s sources leaked the identity of CIA official Valerie Plame, federal prosecutor Patrick Fitzgerald sought Miller’s testimony for the resulting grand jury. If Miller’s source knew Ms. Plame was undercover at the time he revealed her identity, his conversation with Miller would have been a federal crime.

The D.C. Circuit rejected Miller’s privilege claim, reasoning, as the Supreme Court did thirty-three years earlier in Branzburg,that there is no First Amendment protection for journalists “providing evidence to a grand jury, regardless of any confidence promised by the reporter to any source.” The D.C. court decided that Miller, in protecting her source, was complicit in the illegal act of revealing Plame’s identity. Regardless of the resulting public outcry, the Court was correct that permitting Miller to conceal her source would have allowed a criminal to get away with a serious crime. In short? No Privilege here.

Anonymity can still be essential in reporting, though; many sources would never come forward without such guarantees. This topic inevitably generates the classic image of virtuous whistleblower Mark Felt (“Deep Throat”) ensconced in his trench coat, telling Woodward and Bernstein to “follow the money.” Clearly, such individuals deserve protection, but a line must be drawn where information is obtained illegally. An absolute guarantee to maintain a source’s anonymity cannot prevail when faced with a federal subpoena. It remains the role of the judiciary to determine when a reporter is permitted to withhold this information. As Justice Stewart wrote in his biting Branzburgdissent, “courts [are] required to make some delicate judgments . . . But that, after all, is the function of courts of law.”

In the wake of Branzburg, thirty-one states and the District of Columbia have enacted “shield laws” designed to protect confidential relationships between reporters and their sources. A prototypical shield law grants reporters the ability to refuse to disclose sources, regardless of the circumstances or consequences of that silence. Such state laws provide journalists limited relief from subpoenas seeking the identity of confidential sources. However, these laws vary greatly from state to state, and rarely prevent a successful contempt of court charge should a reporter refuse to reveal his or her sources.

Regardless of how the states feel, however, under no circumstances do state shield laws protect reporters from the power of a federal subpoena. While many states have enacted shield laws and some circuits now recognize a privilege, very little has actually changed since Branzburgat the federal level. It is worth noting, however, that Watergate, Abu Ghraib, and the wiretapping scandals of recent memory all came to light well after the Branzburg decision. So although the privilege is more limited, it hasn’t stopped governmental whistleblowers altogether.

Who May Keep Quiet

In an age where bloggers break nearly as many stories as traditional news outfits, one of the most contentious problems with crafting a federal reporter’s shield is deciding whom it protects.

The Free Flow of Information Act, currently being debated in the Senate, passed the House in October 2007. It is the first federal law providing statutory guidance to federal judges regarding reportorial privilege. Though an interesting attempt, the bill is far too limited in its definition of “journalist.” A person must either obtain a “substantial portion” of his or her livelihood or reap “substantial financial gain” from the dissemination of the information collected in order to enjoy protection under the law. This hurdle would deny protection to nearly the entire blogosphere, along with high school and university journalists.

Even more disconcerting, the proposed bill does not provide unqualified immunity for journalists. Again, if the government proves that a significant public interest exists in information obtainable only from that confidential source, subpoenas are allowed and reporters have no right to confidentiality of sources. The same is true if there are allegations that a crime has been committed and there is no alternative means for the government to obtain this information. These “caveats” weaken the law’s protections and leave it open to significant interpretation by the Justice Department. As a result, even with the passage of the Free Flow of Information Act, it would remain in the hands of the judiciary to define who should receive protection, and when it is appropriate.

All of the cases discussed thus far have involved courts demanding the identity of a source allegedly in the process of committing a crime. What happens if the source in question is not in the process of engaging in criminal activity? The government first must prove to a judge that crucial information cannot be obtained elsewhere, and provide substantial evidence of a significant public interest in disclosure. If that happens, the reporter faces a difficult decision: provide the information as demanded by law, or be held in contempt. Thus, the privilege should almost always apply-unless the government can prove a compelling interest otherwise.

A poorly written federal shield law will cause significant problems for news organizations and reporters, as well as their potential sources. Over the past thirty-six years, the judiciary has proven themselves extremely capable of determining the circumstances under which a reporter should be forced to reveal their sources. To date, many of those circumstances have involved a reporter attempting to protect a possible criminal, something no citizen has the right to do when faced with a federal subpoena. With the legislature seemingly anxious to intervene, time will tell whether the “Freedom of the Press” guaranteed by the Constitution remains sufficient to ensure the free-flow of information we all hold so dear.

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